What Does a Florida Prenup Look Like?

What Does a Florida Prenup Look Like?

A Florida premarital agreement is a written document of about 40 articles. Two disclosure exhibits follow, one from each spouse, listing income, assets, debts and estate interests. Signature pages close the agreement with space for both parties, two subscribing witnesses, a notary acknowledgment and a certification from each party’s lawyer.

A sample downloaded from the internet is a different object. In one 2021 case before the Fourth District Court of Appeal, a couple woke the morning of their wedding in Massachusetts, generated an online form, and signed it before a notary only, with no witnesses. The Florida court applied Florida law because the Florida homestead was at stake. A footnote said the court found no case law supporting the contention that one party’s signature can qualify as a subscribing witness to the other’s. The specific residence clause beat the general waiver, and the surviving spouse kept her homestead rights.

A downloaded form cannot know your property, your children, your business, your retirement accounts or your reasons for the agreement. The firm drafts the agreement for one spouse at a flat fee from $2,450. The other spouse chooses their own lawyer. A free consultation explains how the process works.

What Goes in the Opening Recitals of a Prenup?

The opening recitals identify both parties by name and residence. Prior marriages and children from those marriages appear next. Each party’s work and expected income are stated. The reasons for the agreement are written out, whether the goal is protecting a family business, keeping an inheritance separate or planning for children from an earlier relationship.

A statement follows that each party would sign regardless of the other’s wealth. The reasons matter because fairness is measured at the signing, not years later at a divorce or a death. The Florida Supreme Court stated in a 1962 case that “[t]he element of fairness should, of course, be measured as of the time of the execution of the agreement.”

What Makes a Prenup Legally Binding in Florida?

One article repeats, in the words of Florida’s premarital act, the requirements a court checks at enforcement. The article states that each party signed voluntarily, that the agreement is not the product of fraud, duress, coercion or overreaching, that the agreement was fair and reasonable at signing, that each party received a fair and reasonable disclosure of the other’s property and financial obligations, that each party waived in writing any right to further disclosure beyond what was provided and that each party had adequate knowledge of the other’s finances.

The signed written waiver of further disclosure is the clause that matters most. Under Florida law a spouse challenging a prenup at a divorce must prove unconscionability at signing and all three disclosure failures together. A signed express waiver defeats that ground by itself. The firm gives the disclosure and the waiver. Relying on the waiver alone is a shortcut that invites a fight.

Each party’s lawyer signs a certification at the end of the agreement. Lack of counsel or bad advice from counsel is not by itself a ground to set an agreement aside. The Florida Supreme Court held in 1987 that “incompetent legal advice is not a basis to vacate an agreement in a dissolution proceeding.” Separate counsel is the cheapest proof the agreement was voluntary.

What Does a Prenup Financial Disclosure Look Like?

Two disclosure exhibits attach to the agreement, one from each spouse. Each exhibit lists income, assets, debts and estate interests with good-faith values. The figures are acknowledged as approximations that may be higher or lower than the actual values.

In a 2004 case before the Fourth District Court of Appeal, one spouse listed a 25 percent interest in an insurance agency as “Exact value unknown” with a note of its gross commissions. The agreement was enforced after 18 years of marriage. The court said, “We do not read into Del Vecchio or Casto a requirement imposing a duty on Husband to hire an expert to determine a valuation of his interest in the agency before the parties could marry.”

In another case, a husband’s airline pension was omitted from his schedule. The agreement survived because it had its own section on pension benefits. The Fourth District Court of Appeal held in 2009 that ten days before the wedding was enough time to review the agreement and, if one chooses, to seek the advice of legal counsel.

A disclosure does not need appraisals. A disclosure needs honesty and a reasonable description of what each party owns and owes. An estimate and a short note explaining how a business or investment works is usually enough.

What Does a Prenup Say About Separate Property?

The separate property article defines what stays yours. In the firm’s form, separate property includes everything owned at the marriage, everything acquired in one name during the marriage, all appreciation whether active or passive and whether or not from either party’s labor, all income and earnings during the marriage, business interests, retirement accounts, gifts and inheritances, personal injury recoveries, professional licenses and goodwill, trust interests and expectancies and anything not titled jointly.

The phrase “appreciation whether active or passive” is the clause that decides most disputes. In a 2001 case before the Second District Court of Appeal, a clause that said the husband’s home would stay separate “if it increases in value during the marriage” was read as passive appreciation only. The court said, “We construe this provision of the agreement to address passive appreciation.” The husband’s active improvement of the home stayed divisible because the agreement did not say so.

The Fourth District Court of Appeal held in a 2014 decision that an agreement covering property “now owned or hereafter acquired” reached enhancement from marital labor. The court said, “If the prenuptial agreement is to effectively shield the husband’s assets from the wife’s claims, it must also include any appreciation in value.” A short agreement that says “separate” without defining the word leaves appreciation on the table.

What Is a Fair Prenup in Florida?

The firm’s form includes an optional shared-growth clause. Growth in premarital property and inherited property during the marriage is shared equally at a divorce if the couple chooses this clause. Starting values are documented within 60 days after the wedding. The clause answers the question that appears in every online forum where an engaged person asks whether their agreement is fair.

A spouse entering the marriage with little asks for this clause. A spouse with family wealth or a business often resists it. The negotiation is the point. A prenup is not a document one side presents and the other signs. Two lawyers mark it up until both clients can live with it. If the parties cannot agree, they learn that before the wedding, not after.

Fairness is measured at the signing, not by what happens later. The Florida Supreme Court said in 1962 that the basic issue is concealment, not the absence of disclosure, and a spouse may not repudiate an agreement if she is not prejudiced by the lack of information. An agreement that looks lopsided can still hold if the challenging spouse understood it, signed voluntarily and could have asked for more.

The shared-growth clause makes a prenup feel less like a weapon and more like a plan. The clause says that if the marriage succeeds and the business grows, both spouses benefit. If the marriage ends, each spouse still keeps what they brought in.

What Does the Joint Account and Debt Clause Say?

The firm’s agreement limits marital property to jointly titled property, accounts held jointly, and any business either party starts during the marriage. Everything else stays with the spouse who owns it.

A separate contribution clause addresses joint purchases. Each spouse’s separate contribution to a joint purchase is repaid first before an equal split, if records prove it. Without records, the rule cannot help.

The debt articles work the same way. Separate debts stay separate, and each spouse agrees to indemnify the other if a creditor comes after the wrong spouse. Marital debts are limited to debts incurred jointly.

One limit applies to every debt clause. A prenup binds the two spouses. A prenup does not bind a bank, a lender or any other creditor, so a joint debt remains collectible from both spouses whatever the agreement says between them. The indemnity settles which spouse bears the loss internally. The indemnity does not stop a collection call.

Does a Prenup Cover What Happens at Death?

The death-side articles reach further than most people expect. The firm’s agreement waives every right Florida law gives a surviving spouse by default. The list includes the elective share (30 percent of the elective estate), the intestate share, the pretermitted share, homestead descent and devise restrictions, exempt property (up to $20,000 of furnishings plus two vehicles), the family allowance (up to $18,000), community property rights, the right to take against a will or trust, and the right to serve as personal representative unless named.

A separate article gives the survivor a six-month right to stay in a home that was the decedent’s separate property. During those six months the estate pays the mortgage, taxes and insurance; the survivor pays utilities. After six months the survivor vacates.

A covenant not to contest the other’s will or trust is standard.

A short agreement can reach death by accident. In one Florida case, a five-paragraph prenup said each estate would “forever remain” separate and “forever free of claim by the other.” The First District Court of Appeal in 2009 held those words waived every surviving-spouse right though the agreement never mentioned death. An agreement that says nothing about death may be read to say everything about it, depending on the words chosen.

The death-side waiver is also what requires two subscribing witnesses for a Florida resident, beyond the notary the firm adds.

How Does a Prenup Handle Alimony in Florida?

The divorce-side articles start by fixing a date. The agreement defines a “marriage termination event” as the first of a served divorce petition, a signed settlement agreement, or written notice of intent to separate. The termination-event date controls what gets valued and when.

The alimony clause waives every form by name. The forms include bridge-the-gap, rehabilitative, durational, lump sum, and permanent under any prior or future law. The waiver includes any modification of alimony. In a 2014 decision, the Fourth District Court of Appeal held that a general alimony waiver “except as otherwise provided” was not specific enough to waive the right to seek judicial modification. Naming every form and then naming modification separately is what makes the waiver hold.

Two limits apply to every alimony clause. First, temporary support and temporary attorney’s fees while a divorce case is pending cannot be waived under current Florida law, whatever the agreement says.

Second, Florida law says if a waiver causes one spouse to be eligible for public assistance at separation, a court may order support to avoid that eligibility, notwithstanding the agreement.

No prenup can set child support, parental responsibility or time-sharing. A court decides those later by the child’s best interests.

What Does the Prenup Say About Retirement Accounts?

Retirement accounts stay separate under the firm’s agreement. The clause says each spouse’s 401(k), pension, IRA and similar accounts remain that spouse’s property, and neither spouse has a claim to the other’s retirement assets at divorce.

A second clause addresses survivor rights, but the signature on the prenup is not enough. Under federal law, a waiver of survivor rights in a workplace retirement plan such as a 401(k) or pension must be signed by a spouse, not by someone who is not yet a spouse. A waiver signed before the wedding does not satisfy the plan.

The fix is built into the agreement. The clause includes a covenant by each spouse to sign the plan’s own spousal consent forms within 30 days after the wedding. The spousal consent forms are the plan’s own paperwork, available from the plan administrator. An IRA is not governed by this rule and needs no separate consent.

What Else Is in a Full Prenup?

The remaining articles each do one thing.

Each party pays a share of the combined tax in proportion to that party’s separate income, and each indemnifies the other for errors on that party’s return.

The agreement stays in force if the couple moves to a community property state or another country, and each agrees to sign an amendment if a move makes one necessary.

Trust interests, expectancies and trust distributions are treated as separate property.

Each party may plan and dispose of property as though the other did not exist, except as the agreement provides.

Real property outside the United States may be governed by the law where it sits.

Where one party’s first language is not English, a certified translation is attached and neither party acted as the other’s translator.

The agreement is independent of any federal Form I-864 affidavit of support and nothing in it is induced by immigration status.

The agreement can be changed only by a signed writing of both parties, and no conduct (joint accounts, shared expenses) amends it.

Florida law as of the signing date governs wherever the parties live. As the Fifth District Court of Appeal put it, “Florida’s public policy does not protect the spouse who signs an antenuptial contract freely and voluntarily, has some understanding of his or her rights, and who has or reasonably should have had, a general and approximate knowledge of the proponent’s property.”

A reaffirmation clause asks both parties to sign a short statement within 90 days after the wedding confirming that the disclosure remains accurate or supplementing it.

A prevailing-party attorney’s fee clause covers any action to enforce, interpret or challenge the agreement. The Florida Supreme Court reserved the question of support and fees while a divorce is pending.

Who Signs a Florida Prenup and How?

The signature pages carry both parties, two subscribing witnesses who sign as witnesses, a notary acknowledgment, and a certification of counsel.

Two subscribing witnesses are required for any waiver of rights at death by a Florida resident. A notary alone is not enough, and the other spouse cannot serve as a witness. In a footnote to a 2021 decision, the Fourth District Court of Appeal said, “We found no case law supporting the contention that one party’s signature on a contract can qualify as a subscribing witness to the other party’s signature.” Neither statute requires a notary; the firm adds one so the agreement can be recorded with a homestead deed and the signature is never in issue.

Signing from home before a Florida online notary is permitted. The prenup waives rights at death, so the online notary must ask three screening questions about capacity and daily living before witnessing remotely. Two witnesses join the video session.

The firm’s agreement is drafted for one spouse. The other side’s lawyer marks it up. When the other side drafted first, the firm reviews it for a flat fee from $750, which covers the full review, a written analysis measured against Florida’s default rules, and a call with the attorney. A free consultation is the first step either way.

Frequently Asked Questions

Common Situations

An engaged couple brought in a two-page form they had downloaded and filled in themselves. The walk-through showed the form had no disclosure exhibits, no voluntariness article, no death-side waivers, and no signature lines for witnesses. The husband-to-be owned a landscaping company worth more than his other assets combined. The couple signed the firm’s agreement six weeks before the wedding with a separate growth clause, full disclosure schedules and two witnesses each.

A business owner asked whether the company he started five years before the engagement would be protected. The walk-through showed that a short clause on “separate property” could be read to cover only the value at the wedding, leaving the growth during the marriage open to division. The disclosure exhibit described the company by its ownership percentage, a revenue range and a statement that no formal appraisal had been done. The separate-property article spelled out that appreciation, whether active or passive, stayed with the owner.

Sources of Law

• Premarital agreements: Fla. Stat. §61.079 (2026) (definition, the matters an agreement may cover, the enforcement grounds in subsection (7), amendment and revocation by a signed writing without consideration).
• Waiver of spousal rights at death: Fla. Stat. §732.702 (2026) (a written waiver signed before two subscribing witnesses; fair disclosure required only when the waiver is signed after marriage; "all rights" language waives the elective share, intestate share, pretermitted share, homestead, exempt property, family allowance and preference as personal representative).
• Elective share: Fla. Stat. §732.201, §732.2065 (30 percent of the elective estate) and §732.2135 (2026) (the election is filed within 6 months after service of the notice of administration and within 2 years after death; an extension must be requested before the time expires); §733.212(8) (a waiver of service of the notice of administration counts as service on the date the waiver is filed).
• Homestead: Fla. Const. art. X, §4(c); Fla. Stat. §732.401 and §732.4015 (2026) (descent of homestead and the devise restriction when a spouse or minor child survives); §732.7025 (the deed waiver).
• Divorce side: Fla. Stat. §61.075 (2026) (equitable distribution; marital and nonmarital assets, enhancement of nonmarital assets by marital labor or funds) and §61.08 (alimony).
• Remote witnessing: Fla. Stat. §117.285(5) (2026) (the screening questions a remote online notary must ask a vulnerable adult signing a document that waives spousal rights).
• Retirement plans: 29 U.S.C. §1055 and 26 U.S.C. §417 (a spousal survivor-benefit waiver under an employer plan is signed by the spouse after the wedding, so a prenup alone does not waive it). Treas. Reg. §1.401(a)-20, Q&A-28.
• Cases, each read in full from the opinion files under reference/caselaw/: Casto v. Casto, 508 So. 2d 330 (Fla. 1987); Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962); Waton v. Waton, 887 So. 2d 419 (Fla. 4th DCA 2004); Doig v. Doig, 787 So. 2d 100 (Fla. 2d DCA 2001); Hahamovitch v. Hahamovitch, 174 So. 3d 983 (Fla. 2015); Taylor v. Taylor, 1 So. 3d 348 (Fla. 1st DCA 2009); Williams-Paris v. Joseph, No. 4D20-1760 (Fla. 4th DCA Nov. 17, 2021); McNamara v. McNamara, 40 So. 3d 78 (Fla. 5th DCA 2010); Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005).
• Fees: the firm's posted fee schedule, posted October 6, 2026 and honored 90 days from posting; government costs are additional and passed through at cost. Secure Will Estate Plan and lady bird deed fees on the pricing page.
Statute text compared with the 2026 Florida Statutes on 2026-11-11.

Related Guides

Florida Prenuptial Agreement Attorney, What Does a Prenup Cover in Florida?, Florida Prenup Financial Disclosure: What Is Required, Florida Prenup Template: What a DIY Agreement Misses, Does a Prenup Need to Be Notarized in Florida? No, Does a Prenup Apply at Death in Florida? Yes, Can a Prenup Waive Alimony in Florida? Yes, With Limits, Prenup for a House in Florida: What It Must Say, How a Prenup Works in Florida.

What I Have Seen With Prenup Disputes

In 14 years of law practice, I have read hundreds of premarital agreements that couples drafted themselves or downloaded from the internet, and nearly all of them leave out something that matters. I also litigate these agreements after they fail, which enhances the practice of drafting them.

I have a few take-home points.

The first is the disclosure schedule. A Florida court enforced an agreement after 18 years even though a husband’s insurance agency was listed as “exact value unknown” with a note of its gross commissions. The court said no duty exists to hire an expert to determine a valuation before the parties could marry. A good-faith estimate with a short explanation is usually enough.

The second is the language on appreciation. In a 2001 case before the Second District Court of Appeal, a clause that said the husband’s home would stay separate “if it increases in value during the marriage” was read as passive appreciation only. His active improvement of the home stayed divisible because the agreement did not say so. The words “whether active or passive” decide most disputes.

Avoid signing an agreement the morning of the wedding. Courts have voided agreements handed over at the last minute, with invitations mailed and flights booked, because the timing itself was duress.

One honest limit is that no prenup is immune to challenge, and an agreement that looks complete can still be set aside if the signing was rushed or the disclosure was missing.

Kevin D. Klagge, Esq., admitted in Florida since 2012. General information rather than advice on your situation.

Updated on November 12, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502.

General information about Florida law, not legal advice, and no attorney-client relationship is created. Do not send confidential information until we have agreed to represent you.